Contract law problem scenario Case Study Example | Topics and Well Written Essays - 2000 words

Contract law problem scenario - Case Study Example Equity has always sought to protect the weaker of two parties from oppression and from exploitation. In the context of a mortgage, equity will seek to intervene where the mortgage terms are oppressive. In order to answer this question it needs to consider presumed undue influence, which was defined in Bank of Credit and Commerce International SA v Aboody1. In this case the Court held that there was a relationship of trust and confidence between the parties of such a nature that it is fair to presume that the trust and confidence of the claimant were abused. Ginger is mother of Seamus, so the case falls in Class 2A types presumed undue influence for specific relationship. In Royal Bank of Scotland v Etridge (No. 2)2, the principle judgement was given by Lord Nicholls. In this case Ginger is especially proud of Seamus, who is a real success in her eyes. Lord Nicholls considered that a bank or any financial institution lending money should take steps to ensure that the claimant receives legal advice by asking for the name of the claimant's legal adviser. Here Northern Bank sends Miss Bindie with all the necessary paperwork but she did not provide adequate information. On the other hand Miss Bindie advised for solicitor or accountant to explain details of legal responsibilities and risks involved before sign papers. In order to answer this question it is also necessary to argue whether the contract was unconscionable or not. Here the contract was unconscionable for Ginger. Ginger is a pensioner, and has no other income. In Commercial Bank of Australia Ltd v Amadio3, in the High Court, it was held that the transaction should be set as side on the grounds that the bank's behaviour was unconscionable. An English court might well have reached the same conclusion on these facts by the application of the rules of undue influence. In Portman Building Society v Dusangh4, a father borrowed money on mortgage from the claimants so as to fund a loan to his son who was planning to buy a supermarket. The father was 72, retired, illiterate in English and spoke it poorly. No fraud or undue influence on the part of the son was alleged and the son was not in financial difficulties at the time of the loan. The father, the son and the building society sought to enforce the mortgage and the father argued that the tr ansaction as unconscionable was not excluded but on the facts the transaction was held not to be unconscionable. In Barclays Bank plc v O'Brien5, Mrs O'Brien sought to set aside the mortgage transaction on the ground that she signed the documents under undue influence and misrepresentation. It was held that the mortgage had been obtained either by her husband's misrepresentation or because of undue influence over her and the court ordered it to be set aside. Ginger can apply to the under s.14 of Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), whereby the court may make any order, including one not to sell (unlike the old s.30 of the Law of Property Act 1925, where sale was often the required way to resolve any dispute unless the purposes for which the property was